2013943 (Refugee)

[2020] AATA 6094

2013943 (Refugee) [2020] AATA 6094 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013943

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Tania Flood

DATE:27 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 27 October 2020 at 1:56pm

CATCHWORDS
REFUGEE – protection visa – Afghanistan – application not lodged within prescribed time –applicant’s claims of difficulties while in immigration detention – no jurisdiction

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, r 4.31(1)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 3 September 2020 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 14 September 2020. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. As the applicant was in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 7 working days, commencing on that day. If that day was not a working day, the period commenced on the first working day after that day: r: r.4.31(1) of the Migration Regulations 1994.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 3 September 2020 and dispatched by hand. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 1 October 2020 the Tribunal wrote to the applicant advising him that as the primary decision was handed to him on 3 September 2020 he is taken to have been notified of the decision on that day.  The Tribunal advised the applicant that as the last day for lodging the application for review was 11 September 2020 and his application was not received until 14 September 2020 it appears his application is not valid as it was not lodged within the relevant time limit.  The applicant was invited to make any comments on whether a valid application has been made in writing by 15 October 2020.

5. On 2 October 2020 the applicant emailed a response to the Tribunal.  He states that he accepts responsibility for the delayed lodgement of his application but assets his application is still valid and he wishes for it to proceed.  The applicant states that he has experienced difficulties whilst in immigration detention which have affected his ability to submit the application on time.  The applicant refers to language difficulties, the deteriorating state of his mental health and the lack of legal representation.

6. While the Tribunal acknowledges the difficult situation of the applicant there is nothing in his response to indicate that there has been any breach of the notification requirements.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 3 September 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 11 September 2020.

8. As the application for review was not received by the Tribunal until 14 September 2020 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

9. The Tribunal does not have jurisdiction in this matter.

   Tania Flood
   Member